“Live Free, or Die Hard,” or Big Brother is watching? The Brave New World of cell phone tapping. PART I

Among the coolest of gadgets are those which use an internal GPS device to tell you where you are on the map.  I use one in my phone and, thanks to an app from Google that I downloaded for free, it allows me to pinpoint my location, pin it on a map, and plot out the fastest route between point A and point B.  As a former Boy Scout who proudly brought home his Orienteering Merit Badge as a teenager in the early 1990s, I think the technology  that to make a map, put myself on it, and find any address–all within my phone the size of my palm–is about as cool as it gets.

It appears, however, that the information on my forays using my phone’s GPS capabilities are not limited to me.  It was only a few years ago that cell phones were the size of bricks and limited to only the most wealthy.  As they have become ubiquitous, the ability access them has increased, too.  No longer just phones, they are practically personal computers, and it won’t be long before the line between the two disappears altogether.   And, as they have gone from being a luxury to almost a necessity, from just a phone to performing many of the functions of a PC, the ways and means to access the private information they carry has increased, too.  The phone calls I make  and the data I access and store might be available to a person with the right means and technology, or, almost more frighteningly, the government.

But how scared are we?  While cell and computing technology has flown forward at a blinding pace, the law regarding the access of private information has not kept pace (no surprise there, actually…).  Yet, even as more private information has become accessible, and I’m not talking about your status updates to Twitter and Facebook, are we really that worried about it?  Perhaps we are already expecting it?  Television and movies are so full of  the government’s use of GPS and cell phone data that it is almost passé. I can’t remember the last time I saw a police procedural–other than perhaps Law and Order–where the crime was solved without appealing to cell phone records.  Think 24, Live Free, or Die Hard, or the recently popular Castle. Some shows are probably more accurate than others, but regardless of how accurate, the point is that the access to cell phone records is pervasive throughout television.  Can’t find where the suspect was during the time in question?  Just get a warrant for his cell phone records…unless you’re Jack Bauer.  Then you just do it, because that’s how he rolls, and there probably isn’t time to get a stupid warrant, anyway. (See also: disregard of the Constitution in television, torture, repetitive plot lines, and television characters that don’t eat or use the restroom.  Ever.)

Unfortunately, the law regarding the government’s right to access our phone records isn’t very developed, yet.  In law school, we were taught that the Fourth Amendment protected persons from government search without a warrant:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Warrants must be based on probable cause (which, if you’re Jack Bauer, means he can search you because he says so), the most common definition of which is the “reasonable belief that a crime has been committed.”  There’s a whole long line of Supreme Court jurisprudence about what qualifies as probable cause, which I won’t go into here, but suffice to say: the law allows that a search can only be conducted under certain situations, is limited to certain parameters defined in the warrant, and if these parameters are violated, or if the search was conducted without a valid warrant, any evidence found can be excluded from the trial of the suspect.

Maybe that’s why Jack seems to always knock off the bad guy–killing the bad guys provides a much cleaner ending to a crisis than a long and drawn out court case, which I am sure Eric Holder is thinking right about now.   Until and unless Jack Bauer and the executives at Fox run the world of crime fighting and criminal prosecution, though, the rest of us are protected from the abuse of government by the Constitution.

Which brings me to the point: where do cell phones and the data they transmit fit into that scheme?  It is a useful tool for law enforcement, even if the exact parameters of that use is still gray.  CNET reports that:

Two years ago, when the FBI was stymied by a band of armed robbers known as the “Scarecrow Bandits” that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

The FBI got the bad guy, but who determines which of us is that bad guy before the government starts looking into our records?  The Obama Administration is thinking about this, thank heavens.

In briefs filed for oral argument on February 12, the Obama Administration argued that Americans enjoy no expectation of privacy in their phone calls, or at least their whereabouts when making those calls.  Requesting the right to demand a phone service’s records, the “U.S. Department of Justice lawyers say that ‘a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records’ that show where a mobile device placed and received calls.”

Naturally, this has the ACLU and company gathering up their pitchforks, hot tar and feathers.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation […]. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

To be continued…

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